Estate of S - [2012] NSWSC 1281

Supreme Court

New South Wales

Medium Neutral Citation: Estate of S [2012] NSWSC 1281
Hearing dates: 8 October 2012
Decision date: 08 October 2012
Jurisdiction: Equity Division - Probate List
Before: Ward J
Decision:
Leave granted for making of application re statutory will. Orders made approving the terms of the will and for signing and sealing thereof.

Catchwords: SUCCESSION - statutory wills - s 18 Succession Act - application for leave to make application heard with application for substantive relief - where testator lacks testamentary capacity - where proposed will is unexecuted - whether proposed will is one which the testator is reasonably likely to have made had she had testamentary capacity - consideration of actual, or reasonably likely, subjective intention of incapacitated person - HELD - leave granted - application granted
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Re Fenwick (2009) 76 NSWLR 22
Re Will of Jane [2011] NSWSC 624
Texts Cited: N/A
Category: Principal judgment
Parties: L (Plaintiff)
Representation: M K Meek SC (Plaintiff)
Sharon Moss Legal (Plaintiff)

File Number(s): 12/286437

Judgment

HER HONOUR: In this proceeding, application was made by summons filed on 14 September 2012 for the making of a statutory will in relation to the estate of S.

L, the daughter-in-law of S, seeks leave pursuant to s 19 of the Succession Act 2006 for the making of an application for an order under s 18 of the Succession Act for the alteration of a will made by S on 25 June 1955 and, if that leave be granted, seeks an order approving the terms of the will annexed to the Summons.

S, who is aged 96 and suffering from dementia, resides in an aged care facility. In November 2010 the Guardianship Tribunal appointed S's daughter (D) and the plaintiff (L) as guardians and managers of S's estate. (The present application is brought by L with the support of D). As S is a person in respect of whom orders by the Guardianship Tribunal have been made, I have anonymised these reasons.

I heard both the application for leave and the application for the substantive relief on 8 October 2012. I granted leave to make the application and made the orders sought. However, as the application had come before me in a busy Protective List, I indicated that I would later publish the reasons for my decision. These are those reasons.

Background

Briefly, by way of background, I note as follows. S was married to F, who predeceased her in 1982. They had two children, P, who died in 1994, and D. The plaintiff (L) was P's second wife and together they had one child, A1. (P had two children from a prior marriage, namely A2 and A3, both of whom are adults.) D has two children (K and SH). The approximate value of S's current estate is $776,000.00.

S made a will on 25 June 1955 under which she appointed F her sole executor and beneficiary but, in the event that F…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 1281
Decision Date: 08 October 2012

CaseChat Overview and Summary

The case involved an application by the estate of a deceased woman, referred to as S, to the Supreme Court of Victoria. The primary dispute centred around the validity and admissibility of an unexecuted will that was proposed by the deceased, who was alleged to have lacked testamentary capacity at the time of drafting the document. The applicant sought leave to make an application and for substantive relief to have the proposed will recognised as the deceased's last testamentary disposition. The court was tasked with determining whether the proposed will reflected the actual or reasonably likely subjective intention of the deceased had she possessed testamentary capacity.

The legal issues before the court revolved around the interpretation of section 18 of the Succession Act, which pertains to statutory wills. The primary issue was whether the proposed will, which was not formally executed, could be admitted as the deceased's will, considering she lacked testamentary capacity. The court needed to ascertain if the proposed will was one which the deceased was reasonably likely to have made if she had possessed testamentary capacity, and whether the subjective intention of the deceased, as expressed in the proposed will, could be considered in this context. The court also had to evaluate the balance between respecting the incapacitated person's potential intentions and ensuring the will's admissibility adhered to legal requirements.

The court granted leave for the application to proceed and allowed the substantive relief sought. In its reasoning, the court emphasised the importance of the subjective intention of the incapacitated person and noted that the proposed will appeared to align with the deceased's actual or reasonably likely subjective intention. The court found that recognising the proposed will would best reflect the deceased's wishes and provide a just outcome in the circumstances. The court held that, despite the lack of formal execution and testamentary capacity, the proposed will could be considered under section 18 of the Succession Act. Consequently, the application was successful, and the proposed will was admitted as the deceased's statutory will.

Orders